News and analysis of critical issues in homeland security

January 14, 2014

This is the sixth in a series of anticipated posts closely reading the Constitution of the United States for homeland security implications. Readers are encouraged to use the comment function to add background, analysis, exegesis or exposition related to the text highlighted.

–+–

THE PREAMBLE

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

–+–

There are two references to “general welfare” in the Constitution. In addition to the Preamble, there is the following from Article I, Section 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

Historical, political, and legal understandings of general welfare differ. Madison argued that the Constitution was explicit regarding narrow enumerated powers. Hamilton used the general welfare references to justify much broader authority by the national government.

Prior to United States v Butler (1936) the Supreme Court seemed convinced by Madison. But in that New Deal-related decision the majority found:

The clause confers a power separate and distinct from those later enumerated is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. … It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.

The ghost of Hamilton has seemed to haunt the Supreme Court ever since.

Accordingly taxing and spending — and evidently borrowing — are not limited by enumerated powers or the Tenth Amendment or in any other constitutionally required way. Madison’s ghost has, perhaps, been awakened from peaceful sleep. Strange things have been seen at Montpelier.

From this evolution of the general welfare clause has emerged much of the contemporary federal apparatus including (it seems to me) Homeland Security, critical infrastructure protection, national preparedness, whole community resilience, FEMA grants, disaster assistance, and much more.

Article I Section 8 often referred to in legal shorthand as the “Tax and Spend” clause! And Phil you are correct that much of the growth of the administrative federal state, as opposed for example by the federal regulatory state, is built on Article I Section 8!

The federal regulatory state largely built on the Commerce Clause also found in Article I Section 8.

And the so-called Supremacy Clause in Article VI!

I have always argued that DHS has little standard setting or Commerce Clause regulatory authority but clearly the Coast Guard for example does have some.

Congress never identifies the specific Constitutional basis for each of its legislative efforts leaving that task to the federal judiciary. ObamaCare having been ruled Constitutional by SCOTUS as a tax.

Over the last four decades dealing with terrorism has largely been federalized largely within Title 18 of the US Code.

The Health and Welfare title of the US Code is Title 42. This Title houses most of FEMA’s programs, functions, and activities.

Few of the interrelationships of these clauses and Articles have been fully explored.

Given Chief Justice Roberts conclusion about ObamaCare as a tax the Administrative States foundations may be shaking since tax administration is bounded in far different ways than most federal grant programs.

Grants, contracts, and cooperative agreements are the three great playing fields of federal finance.

But looming over all in recent decades is the bank owned Federal Reserve largely operating in secret and picking winners and losers for the modern globalized economy largely by benefiting creditors not debtors with its largesse.

To have a glimpse at how difficult Constitutional analysis has become as SCOTUS continues to undermine The Rule of Law with its deluge of 5-4 rulings just try to understand whether any federal statute “preempts” state law!

In a comment on the West Virginia event [the previous post] I mentioned the so-called Clean
water Act, actually the Federal Water Pollution Control Act. and its need for revision. That Act was ruled Constitutional but the federal courts have undermined that statutory scheme by their analysis of preemption issues. Why? Few national standards exist on public health and safety issues. Just ask the citizens and residents of WEST, TX. Or those in the Charleston, W.Va, AREA.

Necessarily, the general welfare clause is broad in scope. Good government must do what it must do when it must do what it does. Circumstances and sometimes circumstances beyond our present comprehension or imagination dictate what government must do.
The 9/11 Commission lamented the USG’s inability to “imagine.”

The Strategic National Risk Assessment, the 2011 National Preparedness Goal and the requisite National Preparedness Reports are ends toward providing the general welfare.

Government is to varying degrees the arbitrator and regulator of civil society. Theoretically in democratic civil society, the degree to which government provides for the general welfare is determined by the governed.

Affirming that the constitution is not a suicide pact, I add to your equation the emergence of shared governance wherein the private sector and individuals are self-empowered (largely internet-enabled).

John and Bill: I think it is worth noting a strong legal and philosophical tradition that would contend with “Good government must do what it must do when it must do what it does.” There are many, including my father, who argue that in the long-term restraint can be the better choice. Dad will acknowledge the good intentions and in some cases even the near-term benefits of several efforts to promote general welfare. But he and others perceive that such government action too often can subvert the ability of society to self-organize and self-renew. He makes the case that some government actions to fix present problems or mitigate future problems merely delay and potentially amplify the eventual reemergence of the problem. His analysis often tracks the most contemporary discussion of catastrophic cascades in complex adaptive systems.

I am, sometimes to my regret, wishy-washy and case-by-case on many of these matters. But to be responsibly pragmatic I ought, it seems, at least acknowledge the potential harm that advocates of limited government articulate.